By R. Jeffrey Smith
Washington Post Staff Writer
Saturday, December 9, 2006
The Bush administration asserted in federal court yesterday that Defense Secretary Donald H. Rumsfeld and three former military officials cannot be held liable for the alleged torture of nine Afghans and Iraqis in U.S. military detention camps because the detainees have no standing to sue in U.S. courts.
Deputy Assistant Attorney General C. Frederick Beckner III also argued that a decision by the court to let a trial proceed would amount to an infringement by the judiciary on the president's power to wage war and would open the door to new litigation in U.S. courts by foreign nationals who feel aggrieved by U.S. government policies.
"Foreign aliens abroad enjoy no constitutional rights," Beckner told Chief U.S. District Judge Thomas F. Hogan at a hearing on a government motion to dismiss a lawsuit filed on behalf of the defendants by the American Civil Liberties Union and human rights groups.
Becker's colleagues said the lawsuit inappropriately sought to hold Rumsfeld and the others responsible for official acts and expressed concern that soldiers in the future might feel constrained on the battlefield by the fear of being sued.
ACLU counsel Lucas Guttentag argued that the right to be free from torture is universal and enforceable in a U.S. court, in war and peacetime. He said Rumsfeld and the military officials were aware of this and knew about the abuses but either approved or failed to prevent them.
His colleagues argued that because the U.S. military is exempt from laws in Iraq and Afghanistan, only U.S. courts can enforce anti-torture laws there. Otherwise, one said, Iraq would be a "rights-free zone."
Hogan did not indicate how he might rule but suggested that the plaintiffs were seeking something "never decided by a court before." He said he recognized the existence of some principles of international law that cannot be transgressed.
But he also said that "allowing citizens of other countries to bring tort actions against U.S. officials . . . presents serious issues."